DPP v Norman (Costs Order) - [2004] VSC 43

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4681 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Warren Keith Birthisel)	Appellant
v
GREGORY NORMAN	Respondent

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JUDGE:	KELLAM J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2003
DATE OF JUDGMENT:	3 October 2003
DATE OF THIS ORDER:	18 February 2004
CASE MAY BE CITED AS:	DPP v Norman (Costs Order)
MEDIUM NEUTRAL CITATION:	[2004] VSC 43

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COSTS – successful appeal by DPP against a final order of a magistrate on a question of law – Court no longer having power to grant a certificate under Appeal Costs Act 1998 to the unsuccessful respondent to an appeal under s.92 of Magistrates’ Court Act 1989 – no order as to costs made – Magistrates’ Court Act 1989 ss.84(1), 85 and 92. Appeal Costs Act 1964 s.13(1); Appeal Costs Act 1998 s.15(1)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Trapnell	Solicitor to the Office of Public Prosecutions
For the Defendant	Mr W. Walsh-Buckley	Graham Sharkey

HIS HONOUR:

Judgment was handed down by me in this matter on 3 October 2003 whilst I was sitting on circuit at Warrnambool.[1]
[1]DPP v Norman [2003] VSC 369.

The solicitor for the respondent, Mr Sharkey, attended the handing down of the judgment, but neither counsel briefed by him in the proceeding, nor any representative of the appellant was present at the time the judgment was delivered. I might add that this was not by any reason of discourtesy on the part of either but was in the interests of expediency in having the decision handed down as soon as possible. However, in the circumstances, I reserved the question of costs and invited the parties to submit in writing such submissions as they considered appropriate.

By letter dated 29 October 2003, the Office of Public Prosecutions submits that there is no reason why I should depart from the “usual practice” that the costs of the successful party be paid by the other party. Accordingly, the OPP seeks, on behalf of the appellant, that the respondent pay the costs of the appeal.

By a submission in writing forwarded to my Associate by letter dated 13 November 2003, the respondent submits that no order for costs should be made against him, and furthermore, it is submitted that I should make a recommendation that an ex gratia payment be made to the respondent by the Office of the Attorney‑General. The appellant does not seek to respond to the submissions of the respondent.

The proceeding before me was an appeal brought under s.92 of the Magistrates’ Court Act 1989 on a question of law from a final order of a Magistrate. The Magistrate had found a charge under s.49(1)(f) of the Road Safety Act 1996 proved but without convicting the respondent, had proceeded to fine him and cancel his licence for a period of six months. The basis of the successful appeal was that the Magistrate was in error…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Norman (Costs Order)

Details

AGLC: Director of Public Prosecutions v Norman (Costs Order) [2004] VSC 43
Case: [2004] VSC 43
Decision Date: 18 February 2004

CaseChat Overview and Summary

The case involves the Director of Public Prosecutions (DPP) who successfully appealed against a decision of a magistrate regarding a question of law. The matter was heard in the Supreme Court of Victoria, where the magistrate had ruled on a matter concerning costs. The DPP sought to challenge the magistrate's decision on the grounds that it involved an error in the application of the law. The legal issue at the heart of the appeal was whether the Court of Appeal had the authority to grant a certificate under the Appeal Costs Act 1998 to the unsuccessful respondent, in light of the fact that the original appeal was brought under section 92 of the Magistrates' Court Act 1989.

The Supreme Court considered the relevant statutory provisions and the interplay between the Magistrates' Court Act 1989 and the Appeal Costs Act 1998. The court found that the Court of Appeal no longer had the power to grant such a certificate to the unsuccessful respondent of an appeal under section 92 of the Magistrates' Court Act 1989. This conclusion was reached based on the legislative framework, which had undergone changes since the introduction of the Appeal Costs Act 1998. Consequently, the court ruled that it could not make an order as to costs in favour of the unsuccessful respondent in the appeal.

In light of the above findings, the court determined that no order as to costs should be made. The legal framework governing the matter did not permit the granting of a certificate under the Appeal Costs Act 1998 to the unsuccessful respondent in the context of an appeal under section 92 of the Magistrates' Court Act 1989. Therefore, the court upheld the DPP's appeal and dismissed the magistrate's order regarding costs.

Orders